on writs of certiorari to the united states court of
appeals for the third circuit

[June 29, 1992]

Justice Stevens, concurring in part and dissenting in
part.

The portions of the Court's opinion that I have joined are
more important than those with which I disagree. I shall
therefore first comment on significant areas of agreement,
and then explain the limited character of my disagreement.

The Court is unquestionably correct in concluding that
the doctrine of staredecisis has controlling significance in
a case of this kind, notwithstanding an individual justice's
concerns about the merits.
[n.1]
The central holding of Roe v.Wade,410 U.S. 113 (1973), has been a "part of our law" for
almost two decades. PlannedParenthood of Central Mo. v.
Danforth,428 U.S. 52, 101 (1976) (Stevens, J., concurring
in part and dissenting in part). It was a natural sequel to
the protection of individual liberty established in Griswold
v. Connecticut, 381 U.S. 479 (1965). See also Carey v.
Population Services Int'l, 431 U.S. 678, 687, 702 (1977)
(White, J., concurring in part and concurring in result).
The societal costs of overruling Roe at this late date would
be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic
equality of men and women.

Stare decisis also provides a sufficient basis for my
agreement with the joint opinion's reaffirmation of Roe's post-viability analysis. Specifically, I accept the proposition
that "[i]f the State is interested in protecting fetal life after
viability, it may go so far as to proscribe abortion during
that period, except when it is necessary to preserve the life
or health of the mother." 410 U. S., at 163-164; see ante,
at 36-37.

I also accept what is implicit in the Court's analysis,
namely, a reaffirmation of Roe's explanation of why the
State's obligation to protect the life or health of the mother
must take precedence over any duty to the unborn. The
Court in Roe carefully considered, and rejected, the State's
argument "that the fetus is a `person' within the language
and meaning of the Fourteenth Amendment." 410 U. S., at
156. After analyzing the usage of "person" in the Constitution, the Court concluded that that word "has application
only postnatally." Id., at 157. Commenting on the contingent property interests of the unborn that are generally
represented by guardians ad litem, the Court noted: "Perfection of the interests involved, again, has generallybeen contingent upon live birth. In short, the unborn have
never been recognized in the law as persons in the whole
sense." Id., at 162. Accordingly, an abortion is not "the
termination of life entitled to Fourteenth Amendment
protection." Id., at 159. From this holding, there was no
dissent, see id., at 173; indeed, no member of the Court has
ever questioned this fundamental proposition. Thus, as a
matter of federal constitutional law, a developing organism
that is not yet a "person" does not have what is sometimes
described as a "right to life."
[n.2]
This has been and, by the
Court's holding today, remains a fundamental premise of
our constitutional law governing reproductive autonomy.

My disagreement with the joint opinion begins with its
understanding of the trimester framework established in
Roe. Contrary to the suggestion of the joint opinion, ante,
at 33, it is not a "contradiction" to recognize that the Statemay have a legitimate interest in potential human life and,
at the same time, to conclude that that interest does not
justify the regulation of abortion before viability (although
other interests, such as maternal health, may). The fact
that the State's interest is legitimate does not tell us when,
if ever, that interest outweighs the pregnant woman's
interest in personal liberty. It is appropriate, therefore, to
consider more carefully the nature of the interests at stake.

First, it is clear that, in order to be legitimate, the State's
interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian
interest. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 778 (1986)
(Stevens, J., concurring); see generally Webster v. Reproductive Health Services, 492 U.S. 490, 563-572 (1989)
(Stevens, J., concurring in part and dissenting in part).
Moreover, as discussed above, the state interest in potential
human life is not an interest in loco parentis, for the fetus
is not a person.

Identifying the State's interests--which the States rarely
articulate with any precision--makes clear that the interest
in protecting potential life is not grounded in the Constitution. It is, instead, an indirect interest supported by both
humanitarian and pragmatic concerns. Many of our
citizens believe that any abortion reflects an unacceptable
disrespect for potential human life and that the performance of more than a million abortions each year is
intolerable; many find third trimester abortions performed
when the fetus is approaching personhood particularly
offensive. The State has a legitimate interest in minimizing
such offense. The State may also have a broader interest
in expanding the population,
[n.3]
believing society wouldbenefit from the services of additional productive citizens--or that the potential human lives might include the
occasional Mozart or Curie. These are the kinds of concerns
that comprise the State's interest in potential human life.

In counterpoise is the woman's constitutional interest in
liberty. One aspect of this liberty is a right to bodily
integrity, a right to control one's person. See e. g., Rochin
v. California, 342 U.S. 165 (1952); Skinner v. Oklahoma,
316 U.S. 535 (1942). This right is neutral on the question
of abortion: The Constitution would be equally offended by
an absolute requirement that all women undergo abortions
as by an absolute prohibition on abortions. "Our whole
constitutional heritage rebels at the thought of giving
government the power to control men's minds." Stanley v.
Georgia, 394 U.S. 557, 565 (1969). The same holds true for
the power to control women's bodies.

The woman's constitutional liberty interest also involves
her freedom to decide matters of the highest privacy and
the most personal nature. Cf. Whalen v. Roe, 409 U.S. 589,
598-600 (1977). A woman considering abortion faces "a
difficult choice having serious and personal consequences of
major importance to her own future--perhaps to the
salvation of her own immortal soul." Thornburgh, 476
U. S., at 781. The authority to make such traumatic and
yet empowering decisions is an element of basic human
dignity. As the joint opinion so eloquently demonstrates, a
woman's decision to terminate her pregnancy is nothing less
than a matter of conscience.

Weighing the State's interest in potential life and the
woman's liberty interest, I agree with the joint opinion that
the State may " `expres[s] a preference for normal childbirth,' " that the State may take steps to ensure that a
woman's choice "is thoughtful and informed," and that "States are free to enact laws to provide a reasonable
framework for a woman to make a decision that has such
profound and lasting meaning." Ante, at 30. Serious
questions arise, however, when a State attempts to "persuade the woman to choose childbirth over abortion." Ante,
at 36. Decisional autonomy must limit the State's power to
inject into a woman's most personal deliberations its own
views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining
alternatives to abortion, and by espousing the virtues of
family; but it must respect the individual's freedom to make
such judgments.

This theme runs throughout our decisions concerning
reproductive freedom. In general, Roe's requirement that
restrictions on abortions before viability be justified by the
State's interest in maternal health has prevented States
from interjecting regulations designed to influence a
woman's decision. Thus, we have upheld regulations of
abortion that are not efforts to sway or direct a woman's
choice but rather are efforts to enhance the deliberative
quality of that decision or are neutral regulations on the
health aspects of her decision. We have, for example,
upheld regulations requiring written informed consent, see
Planned Parenthood of Central Mo. v. Danforth,428 U.S. 52 (1976); limited recordkeeping and reporting, see ibid.;
and pathology reports, see Planned Parenthood Assn. of
Kansas City, Mo., Inc. v. Ashcroft,462 U.S. 476 (1983); as
well as various licensing and qualification provisions, see
e. g.,Roe, 410 U. S., at 150; Simopoulos v. Virginia, 462 U.S. 506 (1983). Conversely, we have consistently rejected
state efforts to prejudice a woman's choice, either by
limiting the information available to her, see Bigelow v.Virginia, 421 U.S. 809 (1975), or by "requir[ing] the
delivery of information designed `to influence the woman's
informed choice between abortion or childbirth.' "
Thornburgh, 476 U. S., at 760; see also Akron v. Akron
Center for Reproductive Health, Inc., 462 U.S. 416, 442-449
(1983).

In my opinion, the principles established in this long line
of cases and the wisdom reflected in Justice Powell's
opinion for the Court in Akron(and followed by the Court
just six years ago in Thornburgh) should govern our
decision today. Under these principles, §§ 3205(a)(2)(i) (iii)
of the Pennsylvania statute are unconstitutional. Those
sections require a physician or counselor to provide the
woman with a range of materials clearly designed to
persuade her to choose not to undergo the abortion. While
the State is free, pursuant to § 3208 of the Pennsylvania
law, to produce and disseminate such material, the State
may not inject such information into the woman's deliberations just as she is weighing such an important choice.

Under this same analysis, §§ 3205(a)(1)(i) and (iii) of the
Pennsylvania statute are constitutional. Those sections,
which require the physician to inform a woman of the
nature and risks of the abortion procedure and the medical
risks of carrying to term, are neutral requirements comparable to those imposed in other medical procedures. Those
sections indicate no effort by the State to influence the
woman's choice in any way. If anything, such requirements
enhance, rather than skew, the woman's decisionmaking.

The 24-hour waiting period required by §§ 3205(a)(1) (2)
of the Pennsylvania statute raises even more serious
concerns. Such a requirement arguably furthers the State's
interests in two ways, neither of which is constitutionally
permissible.

First, it may be argued that the 24-hour delay is justified
by the mere fact that it is likely to reduce the number ofabortions, thus furthering the State's interest in potential
life. But such an argument would justify any form of
coercion that placed an obstacle in the woman's path. The
State cannot further its interests by simply wearing down
the ability of the pregnant woman to exercise her constitutional right.

Second, it can more reasonably be argued that the
24-hour delay furthers the State's interest in ensuring that
the woman's decision is informed and thoughtful. But there
is no evidence that the mandated delay benefits women or
that it is necessary to enable the physician to convey any
relevant information to the patient. The mandatory delay
thus appears to rest on outmoded and unacceptable
assumptions about the decisionmaking capacity of women.
While there are well established and consistently maintained reasons for the State to view with skepticism the
ability of minors to make decisions, see Hodgson v. Minnesota, 497 U.S. 417, 449 (1990),
[n.4]
none of those reasons
applies to an adult woman's decisionmaking ability. Just
as we have left behind the belief that a woman must
consult her husband before undertaking serious matters,
see ante, at 54-57, so we must reject the notion that a
woman is less capable of deciding matters of gravity. Cf.
Reed v. Reed, 404 U.S. 71 (1971).

In the alternative, the delay requirement may be premised on the belief that the decision to terminate a pregnancy is presumptively wrong. This premise is illegitimate.
Those who disagree vehemently about the legality and
morality of abortion agree about one thing: The decision to
terminate a pregnancy is profound and difficult. No personundertakes such a decision lightly--and States may not
presume that a woman has failed to reflect adequately
merely because her conclusion differs from the State's
preference. A woman who has, in the privacy of her
thoughts and conscience, weighed the options and made her
decision cannot be forced to reconsider all, simply because
the State believes she has come to the wrong conclusion.
[n.5]

Part of the constitutional liberty to choose is the equal
dignity to which each of us is entitled. A woman who
decides to terminate her pregnancy is entitled to the samerespect as a woman who decides to carry the fetus to term.
The mandatory waiting period denies women that equal
respect.

In my opinion, a correct application of the "undue burden"
standard leads to the same conclusion concerning the
constitutionality of these requirements. A state imposed
burden on the exercise of a constitutional right is measured
both by its effects and by its character: A burden may be "undue" either because the burden is too severe or because
it lacks a legitimate, rational justification.
[n.6]

The 24-hour delay requirement fails both parts of this
test. The findings of the District Court establish the
severity of the burden that the 24-hour delay imposes on
many pregnant women. Yet even in those cases in which
the delay is not especially onerous, it is, in my opinion, "undue" because there is no evidence that such a delay
serves a useful and legitimate purpose. As indicated above,
there is no legitimate reason to require a woman who has
agonized over her decision to leave the clinic or hospital and
return again another day. While a general requirement
that a physician notify her patients about the risks of a
proposed medical procedure is appropriate, a rigid requirement that all patients wait 24 hours or (what is true inpractice) much longer to evaluate the significance of
information that is either common knowledge or irrelevant
is an irrational and, therefore, "undue" burden.

The counseling provisions are similarly infirm. Whenever
government commands private citizens to speak or to listen,
careful review of the justification for that command is
particularly appropriate. In this case, the Pennsylvania
statute directs that counselors provide women seeking
abortions with information concerning alternatives to
abortion, the availability of medical assistance benefits, and
the possibility of child support payments. §§ 3205(a)(2)(i) (iii). The statute requires that this information be given to
all women seeking abortions, including those for whom such
information is clearly useless, such as those who are
married, those who have undergone the procedure in the
past and are fully aware of the options, and those who are
fully convinced that abortion is their only reasonable option.
Moreover, the statute requires physicians to inform all of
their patients of "the probable gestational age of the unborn
child." § 3205(a)(1)(ii). This information is of little decisional value in most cases, because 90% of all abortions are
performed during the first trimester
[n.7]
when fetal age has
less relevance than when the fetus nears viability. Nor can
the information required by the statute be justified as
relevant to any "philosophic" or "social" argument, ante, at
30, either favoring or disfavoring the abortion decision in a
particular case. In light of all of these facts, I conclude that
the information requirements in § 3205(a)(1)(ii) and
§§ 3205(a)(2)(i) (iii) do not serve a useful purpose and thus
constitute an unnecessary--and therefore undue--burden
on the woman's constitutional liberty to decide to terminate
her pregnancy.

Accordingly, while I disagree with Parts IV, V B, and V D
of the joint opinion,
[n.8]
I join the remainder of the Court's
opinion.

Notes

1
It is sometimes useful to view the issue of stare decisis from a
historical perspective. In the last nineteen years, fifteen Justices have
confronted the basic issue presented in Roe. Of those, eleven have voted
as the majority does today: Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Justices Blackmun,
O'Connor, Kennedy, Souter, and myself. Only four--all of whom
happen to be on the Court today--have reached the opposite conclusion.

"The suggestion that states are free to declare a fetus a person. . . .
assumes that a state can curtail some persons' constitutional rights by
adding new persons to the constitutional population. The constitutional
rights of one citizen are of course very much affected by who or what else
also has constitutional rights, because the rights of others may compete
or conflict with his. So any power to increase the constitutional
population by unilateral decision would be, in effect, a power to decrease
rights the national Constitution grants to others.

"If a state could declare trees to be persons with a constitutional right
to life, it could prohibit publishing newspapers or books in spite of the
First Amendment's guarantee of free speech, which could not be
understood as a license to kill. . . .Once we understand that the
suggestion we are considering has that implication, we must reject it. If
a fetus is not part of the constitutional population, under the national
constitutional arrangement, then states have no power to overrule that
national arrangement by themselves declaring that fetuses have rights
competitive with the constitutional rights of pregnant women." Dworkin,
Unenumerated Rights: Whether and How Roe Should be Overruled, 59
U. Chi. L. Rev. 381, 400-401 (1992).

3
The state interest in protecting potential life may be compared to the
state interest in protecting those who seek to immigrate to this country.
A contemporary example is provided by the Haitians who have risked the
perils of the sea in a desperate attempt to become "persons" protected byour laws. Humanitarian and practical concerns would support a state
policy allowing those persons unrestricted entry; countervailing interests
in population control support a policy of limiting the entry of these
potential citizens. While the state interest in population control might
be sufficient to justify strict enforcement of the immigration laws, that
interest would not be sufficient to overcome a woman's liberty interest.
Thus, a state interest in population control could not justify a state imposed limit on family size or, for that matter, state mandated
abortions.

4
As we noted in that opinion, the State's "legitimate interest in
protecting minor women from their own immaturity" distinguished that
case from Akron which involved "a provision that required mature
women, capable of consenting to an abortion, [to] wait 24 hours after
giving consent before undergoing an abortion." Hodgson, 497 U. S., at
449, n. 35.

5
The joint opinion's reliance on the indirect effects of the regulation of
constitutionally protected activity, see ante, 31-32, is misplaced; what
matters is not only the effect of a regulation but also the reason for the
regulation. As I explained in Hodgson:

"In cases involving abortion, as in cases involving the right to travel
or the right to marry, the identification of the constitutionally protected
interest is merely the beginning of the analysis. State regulation of
travel and of marriage is obviously permissible even though a State may
not categorically exclude nonresidents from its borders, Shapiro v.
Thompson, 394 U.S. 618, 631 (1969), or deny prisoners the right to
marry, Turner v. Safley, 482 U.S. 78, 94-99 (1987). But the regulation
of constitutionally protected decisions, such as where a person shall
reside or whom he or she shall marry, must be predicated on legitimate
state concerns other than disagreement with the choice the individual
has made. Cf. Turner v. Safley, supra; Loving v. Virginia, 388 U.S. 1
(1967). In the abortion area, a State may have no obligation to spend its
own money, or use its own facilities, to subsidize nontherapeutic
abortions for minors or adults. See, e. g., Maher v. Roe, 432 U.S. 464
(1977); cf. Webster v. Reproductive Health Services, 492 U.S. 490,
508-511 (1989) (plurality opinion); id., at 523-524 (O'Connor, J.,
concurring in part and concurring in judgment). A State's value
judgment favoring childbirth over abortion may provide adequate support
for decisions involving such allocation of public funds, but not for simply
substituting a state decision for an individual decision that a woman has
a right to make for herself. Otherwise, the interest in liberty protected
by the Due Process Clause would be a nullity. A state policy favoring
childbirth over abortion is not in itself a sufficient justification for
overriding the woman's decision or for placing `obstacles--absolute or
otherwise--in the pregnant woman's path to an abortion.' " Hodgson, 497
U. S., at 435.

6
The meaning of any legal standard can only be understood by
reviewing the actual cases in which it is applied. For that reason, I
discount both Justice Scalia's comments on past descriptions of the
standard, see post, at 11-12 (opinion of Scalia, J.), and the attempt to
give it crystal clarity in the joint opinion. The several opinions
supporting the judgment in Griswold v. Connecticut, 381 U.S. 479
(1965), are less illuminating than the central holding of the case, which
appears to have passed the test of time. The future may also demonstrate that a standard that analyzes both the severity of a regulatory
burden and the legitimacy of its justification will provide a fully adequate
framework for the review of abortion legislation even if the contours of
the standard are not authoritatively articulated in any single opinion.

7
U. S. Dept. of Commerce, Bureau of the Census, Statistical Abstract
of the United States 71 (111th ed. 1991).

8
Although I agree that a parental consent requirement (with the
appropriate bypass) is constitutional, I do not join Part V D of the joint
opinion because its approval of Pennsylvania's informed parental consent
requirement is based on the reasons given in Part V B, with which I
disagree.